To Reverify or Not: Form I-9 and Lawful Permanent Residents

On Friday, May 15, the U.S. Department of Homeland Security (DHS) issued a notice clarifying to employers that they cannot reverify Lawful Permanent Residents (LPRs) who presented evidence of permanent residence status that was unexpired at the time of the employee’s initial Form I-9, Employment Eligibility Verification, regardless of later expiration. While employers were never required to reverify LPRs, there has long lacked specific instruction on this, leading many involved in human resources across Pennsylvania and New Jersey to conduct reverifications of LPRs in violation of federal law.

What is Form I-9?

Form I-9, Employment Eligibility Verification (“Form I-9”), is used to:

verify the identity and employment authorization of individuals hired for employment in the United States.” All employers in the United States must are required to implement procedures for the use of Form I-9 that ensure its proper completion for each individual that is hired for employment in the United States—citizens and noncitizens alike.

Federal law requires employers to “allow employees to choose which document(s) they will present from the Lists of Acceptable Documents” that is included with Form I-9. As the DHS M-274, Handbook for Employers, notes, in “Section 1, an LPR may choose to present a List A document (such as Form I-551, Permanent Resident Card, commonly referred to as a Green Card) or a List B and C document combination (such as a state-issued driver’s license and unrestricted Social Security card).”

LPRs are issued a Form I-551, Permanent Resident Card (LPR Card) as evidence of permanent resident status. If an individual is an LPR and presents a valid LPR Card when completing Form I-9, the LPR Card is deemed a sufficient “List A” document, thereby rendering successful the employer’s verification of the individual’s identity and ability to work in the United States. An employee need not present any further evidence. Acceptable LPR Cards include:

• Those issued from January 1977 to August 1989 that have no expiration date;
• Currently unexpired, but with 10-year expiration dates; and
• Currently unexpired, but with 2-year expiration dates.

To Reverify or Not to Reverify?

The DHS notice informs that employers who successfully complete the Form I-9 verification process with an LPR Card that either did not have an expiration date or was a 10- or 2-year LPR Card that was unexpired at the time of verification must not seek to reverify the employee in the future even if the LPR Card later expires.

However, when an individual that is an LPR presents the following to an employer during the Form I-9 verification process, it is necessary to reverify:

• Expired LPR Card and Form I-797, Notice of Action (which is issued when an individual applies to renew an LPR Card), that indicates the LPR Card’s validity has been extended. Employers should consider these documents as acceptable “List C” evidence, requiring reverification at the end of the extension period. Note that the employee must still present a valid, unexpired “List B” document to satisfy the initial Form I-9 verification.
• Form I-94 or Form I-94A, Arrival-Departure Record, containing an unexpired temporary I-551 stamp and a photograph of the individual. When presented, these documents are acceptable “List A” evidence. Employers must conduct a reverification no later than when the I-551 stamp expires, or one year after the issuance of Form I-94 or Form I-94A, Arrival-Departure Record, should the record not indicate an expiration date.
• Current foreign passport with a photograph and either a temporary I-551 stamp or I-551 printed notation on a Machine-Readable Immigrant Visa. Additionally, if the current, foreign passport is, in the rare instance, endorsed with “CR-1,” rather than an I-551 stamp, the employer is reminded that the “CR-1” endorsement is the equivalent of an I-551 stamp. Employers must conduct a reverification when the I-551 stamp or I-551 printed notation on the Machine-Readable Immigrant Visa expires. If there is no expiration date listed, the reverification must occur no later than one year from the date that the I-551 was stamped or “CR-1” was endorsed in the foreign passport.

For more on employment verification, see the National Law Review Labor & Employment law section.